2005 PLP 1679 (YLR)

The petitioner has challenged the vires of the order of the Member. Board of Revenue dated 18-12-2004 through this Constitutional petition.

2. The learned counsel of the petitioner submits that impugned order is passed by respondent No.1 without application of mind. He further submits that entitlement of the petitioner and respondent No.4 were determined by the Addl. Deputy Commissioner Consolidation vide order Dated 11-10-1986. He further submits that order passed by the Member. Board of Revenue is self-contradictory; therefore same can be corrected while exercising inherent powers which have in fact exercised by the Member, Board of Revenue while passing the order dated 25-1-1995. which is in consonance with the law laid down by the superior Courts in (PLD 1976 Lah. 263) (There is no judgment at the cited page). He further submits that mere clerical error of passing of order regarding correctness of the mutation in the order dated 25-1-1995 cannot be allowed to stand in the way of the findings given by the Member, Board of Revenue regarding entitlement of the parties.

3. Mr. Muhammad Hanif Khatana, Addl. Advocate-General entered appearance on Court's call, he submits that constitutional petition is not maintainable.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is settled, principal of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunals below as per law laid down by the Division Bench of this Court and the Honourable Supreme Court in the following judgments:

Board of Intermediate and Secondary Education. Lahore through Chairman and another v. M. Massadaq Naseem Sindhoo PLD 1973 Lahore

600. Syed Azam Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others PLD 1964 SC

260. In case the contents of the petition and impugned order are put in a juxta position then it brings the case of the petitioner in the area of disputed question of facts and this Court has no jurisdiction to resolve the disputed question of facts in Constitutional jurisdiction as the law laid down by the Honourable Supreme Court in Muhammad Younas Khan's case 1993 SCMR

618. It is better and appropriate to reproduce operative part of the impugned order to resolve the controversy between the parties: "I have compared the contents of amendment ordered by the Additional Deputy Commissioner (Consolidation) with Mutation No.531 by way of which said order was implemented. Jamal Din was a refugee from Jammu and Kashmir who was allotted land in Village Rasul Nagar. After orders dated 11-10-1986 by the Additional Deputy Commissioner (Consolidation)/Collector (Consoli dation) and dismissal of his appeal he kept quiet for a period of about four years and applied for review of mutation thereafter. Jamal Din pursued the matter diligently, therefore, it could not be presumed that he remained unaware of contents of Mutation No.531 for such a long period of time. Over all effect of Mutation No.531 is that the land of Jamal Din was increased by 10-Kanals from original consolidation scheme. He had admittedly got more area that his entitlement from Mastan Shah. Impugned mutation further increased it to 71 Kanals. According to decision of the Additional Deputy Commissioner (Consolidation), dated 11-10-1986, Khasra Nos.4197, 4198, 4199 and 4202 measuring 32-Kanals were taken out of the Khata of Jamal Din and was given Khasra Nos.4034, 3492, 4393, 4394, 4440, 4441 and 4506 measuring 42-K-11M. The petitioners seized the land given to him in amendment by the Collector in isolation of his consolidation scheme. The amendment mentions old Khasra numbers whereas mutation mentions new. Two mutations were sanctioned in favour of Jamal Din, one bearing No.2598 implementing the order of the Additional Deputy Commissioner (Consolidation) dated 18-1-1982 and second was impugned Mutation No.531. Khasra No.4506 measuring 8 Kanals, which was not originally mentioned in the order of. the Additional Deputy Commissioner (Consolidation) was also given to him. In nutshell, Mutation No.531 gives him land measuring 42 Kanals out of which he already had 34-K-IIM and was given additional 8-Kanals comprising of Khasra No.4506. Thus area with, petitioners comes to 42-K-11M No loss has occurred to the petitioners. Moreover, they have sold 32-Kanals of land through registered sale-deed which tantamounts to acceptance of land given to petitioners. " Mere, reading of the aforesaid paragraph reveals that Member, Board of Revenue passed the impugned order after application of mind. It is settled principle of law that Constitutional jurisdiction is discretionary in character. I am not inclined to exercise my discretion in favour of the petitioner as the land was given to the petitioner was not mentioned in the original order dated 18-1-1982 which was given to him at the time of implementing the order of the Additional Deputy Commissioner (Consolidation)" dated 18-1-1982. Substantial justice has been done between the parties; therefore, I am not inclined to exercise discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in the following judgments:-- Nawab Syed Raunaq Ali's case PLD 1973 SC

236. Rana Muhammad Arshad's case 1998 SCMR 1462. It is also settled principle of law that in case the petitioner is not vigilant to pursue the matter then it is good ground not to exercise discretion in favour of the petitioner as per law laid down by the Full Bench of this Court and the Honourable Supreme Court in the following judgments:- Haji Saif Ullah's case PLD 1989 SC

166. Kh. Muhammad Sharif's case PLD 1988 Lahore.

725. The case was decided by the Member, Board of Revenue on 18-12-2004. The petitioner filed application to secure copy of the same on 26-1-2005, which was prepared on 27-1-2005. The petitioner has filed this Constitutional petition before this Court on 1-4-2005. therefore, same is also liable to be dismissed on the well-known principle of laches as per law laid down by the Honourable Supreme Court in Khaili Khan v. Haji Nazir Ahmad and 4 others PLD 1997 SC

304. In view of what has been discussed above this writ petition has no merits and the same is dismissed. H.B.T./J-70/L Petition dismissed.